Early GC approval and subsequent NOIR

[SnowFairy2 0]

17 minutes ago, Family said:

It will be a bit of a game / tactic to see if you can simultaneously

1. file a new I-485 …include copy of Noir and your Response 

2. Include copy of new I-485 form with Response . Just list it as an exhibit and write w a big sharpie “ Copy as filed “ on form itself 

 

3. Since you have been through EOIR already, you can DIY ( self represent ) even a court appearance . Worst case scenario, you will have to adjust with IJ…but I don’t think it will get that far. Judge will give them a tongue lashing 😂..but you will be fine

 

Oh man, that's way more complicated than anything I've DIY'd so far...

 

Why do you think that I-290B is not the way to go? I've had lawyers recommend that route.

 

Getting a receipt number for I-485 seems to take over a month in a lot of cases, so I wouldn't be able to provide a receipt notice with my response to NOIR, only a copy of the filing itself... And then it will be handled by a different service center (NOIR comes from FO, I-485 handled by NBC).

 

Is there any reason for me to escalate the case to court? (and how do I do that?) Or will USCIS do so if they are not satisfied with my response?

[Family 3,988]

32 minutes ago, SnowFairy2 said:

 

Oh man, that's way more complicated than anything I've DIY'd so far...

 

Why do you think that I-290B is not the way to go? I've had lawyers recommend that route.

 

Getting a receipt number for I-485 seems to take over a month in a lot of cases, so I wouldn't be able to provide a receipt notice with my response to NOIR, only a copy of the filing itself... And then it will be handled by a different service center (NOIR comes from FO, I-485 handled by NBC).

 

Is there any reason for me to escalate the case to court? (and how do I do that?) Or will USCIS do so if they are not satisfied with my response?

Take it one step at a time and of course , do as you see fit. 

‘Do note, I did NOT suggest you wait for Receipt Notice of new I-485. I spelled out using just a copy of the form , marked in big bold Copy As Filed.

 

I can’t take a strong position on I-290 B ( brain fog ?😂) …as I-290 B motions or appeals a denials /revocation….the rescission of status proceeding is different and as you can read , the NOIR was served so unless your response convinces them to do a quick “ fix”…hence I suggest trying to get in simultaneous I-485…you end up in court anyway…because only an IJ can take away LPR

 

 

 

https://www.justice.gov/eoir/reference-materials/ic/chapter-7/3

a) In General

In a rescission proceeding, an immigration judge determines whether a noncitizen’s status as a lawful permanent resident should be “rescinded,” or taken away, because the noncitizen was not entitled to become a lawful permanent resident.  See generally 8 C.F.R. § 1246.1 et seq.  A noncitizen’s lawful permanent resident status may not be rescinded if more than 5 years have passed since the noncitizen became a lawful permanent resident.  See INA § 246(a).

(b) Notice of Intent to Rescind

A rescission proceeding begins when the Department of Homeland Security personally serves a noncitizen with a Notice of Intent to Rescind.  The noncitizen has 30 days to submit a sworn answer in writing and/or request a hearing before an immigration judge.  A rescission hearing is held if the noncitizen files a timely answer which contests or denies any allegation in the Notice of Intent to Rescind or the noncitizen requests a hearing.

(c) Conduct of Hearing

Rescission proceedings are conducted in a manner similar to removal proceedings.  See Chapter 4 (Hearings before the Immigration Judges).

(d) Appeal

An immigration judge’s decision in a rescission proceeding can be appealed to the Board of Immigration Appeals.

 

 

Edited July 29 by Family

[Family 3,988]

7 minutes ago, Family said:

Take it one step at a time and of course , do as you see fit. 

‘Do note, I did NOT suggest you wait for Receipt Notice of new I-485. I spelled out using just a copy of the form , marked in big bold Copy As Filed.

 

There is NO I-290 B for your rescission scenario ! ( brain fog lifted !?😂) …as I-290 B motions or appeals a denials /revocation….the rescission of status proceeding is different and as you can read , the NOIR was served so unless your response convinces them to do a quick “ fix”…hence I suggest trying to get in simultaneous I-485…you end up in court anyway…because only an IJ can take away LPR

Q. How will I know if my decision may be appealed?

A. Your denial or revocation notice will include information about your appeal rights.  

https://www.uscis.gov/forms/all-forms/questions-and-answers-appeals-and-motions

[Family 3,988]

43 minutes ago, SnowFairy2 said:

Is there any reason for me to escalate the case to court? (and how do I do that?) Or will USCIS do so if they are not satisfied with my response?

In the Sample Response, I drafted , you will notice that you “admit” allegations 1-4 and “deny” allegation 5. This makes it a contested hearing so if USCIS doesn’t choose to fix it , you go to court. Already prepared to fight. 
 

[TBoneTX 45,250]

SnowFairy, you ran up against the "post count" for new members on their first day.  Another VJ Moderator closed the duplicate account that you started so that you could reply above.  You'll just have to wait until tomorrow, when you'll have another set of posts (more than 5 or 6).

 

Sorry about that -- the first-day limit on posts was implemented to cut down on spammers.  We were drowning in it before, and we still get a bunch.

[Family 3,988]

55 minutes ago, SnowFairy2 said:

Why do you think that I-290B is not the way to go? I've had lawyers recommend that route.

Don’t pay those guys ..find one that has hands on w rescission proceedings 

[Family 3,988]

Know that going through EOIR/court this time will NOT involve anything related to your asylum, that decision remains undisturbed ,so no worries . 
You will just need to say in plain language, that USCIS made a mistake and they refused to fix it . 

[Demise 1,277]

@Family

I wonder if asking for a reconsideration or a de novo review on the I-485 as a part of the response is something worth doing. USCIS has undoubtedly screwed up here, Policy Manual Volume 7, Part M, Chapter 2, Footnote 2 states:

"Because USCIS’ practice and policy has varied with regard to whether the 1 year of physical presence was required at the time of filing or at the time of adjudication of the application, USCIS considers an asylee who was adjusted to lawful permanent residence despite not having accrued 1 year of physical presence at the time of filing their application for adjustment to have been lawfully admitted for permanent residence if the applicant had accrued 1 year of physical presence by the time of adjudication and the admission was otherwise lawful."

 

Basically request the following:

Vacate the too early approval of I-485 due to USCIS error. Re-approve the application as of the first day permissible by law (date asylum granted + 1 year). Issue a new permanent resident card with a correct resident since date (I-485 approval date - 1 year, asylees granted AOS are backdated 1 year). Drop the rescission proceedings.

 

Best case scenario, USCIS sees reason and fixes their error.

 

Now, I am not super versed in how rescission proceedings look like because they're rare. Normally one's prior status would've lapsed or one has violated it by doing the things an LPR can do (and whatever prior status can't) and there's nothing to fall back onto or the issues rely to something that would make one removeable or it'd been more than 5 years since AOS, so USCIS would just skip to removal proceedings instead. That being said, I see no reason why an IJ couldn't review an I-485 de novo in a rescission hearing and just approve it and end the case there.

[Family 3,988]

4 hours ago, Demise said:

@Family

I wonder if asking for a reconsideration or a de novo review on the I-485 as a part of the response is something worth doing. USCIS has undoubtedly screwed up here, Policy Manual Volume 7, Part M, Chapter 2, Footnote 2 states:

"Because USCIS’ practice and policy has varied with regard to whether the 1 year of physical presence was required at the time of filing or at the time of adjudication of the application, USCIS considers an asylee who was adjusted to lawful permanent residence despite not having accrued 1 year of physical presence at the time of filing their application for adjustment to have been lawfully admitted for permanent residence if the applicant had accrued 1 year of physical presence by the time of adjudication and the admission was otherwise lawful."

 

Basically request the following:

Vacate the too early approval of I-485 due to USCIS error. Re-approve the application as of the first day permissible by law (date asylum granted + 1 year). Issue a new permanent resident card with a correct resident since date (I-485 approval date - 1 year, asylees granted AOS are backdated 1 year). Drop the rescission proceedings.

 

Best case scenario, USCIS sees reason and fixes their error.

 

Now, I am not super versed in how rescission proceedings look like because they're rare. Normally one's prior status would've lapsed or one has violated it by doing the things an LPR can do (and whatever prior status can't) and there's nothing to fall back onto or the issues rely to something that would make one removeable or it'd been more than 5 years since AOS, so USCIS would just skip to removal proceedings instead. That being said, I see no reason why an IJ couldn't review an I-485 de novo in a rescission hearing and just approve it and end the case there.

Yes to all the hypothetical scenarios you bring up: USCIS can backtrack decision , IJ can review 1st I-485.

 

Attempting to lodge a 2nd now is more a tactic to show OP exhausting all “reasonable “ actions …am SUPER impressed he returned the plastic card ( assuming via an I-90 for error) I actually believe 2nd I-485 should be rejected at mailroom …but may go through.  Noteworthy to mention, he can do fee waiver , if qualified.

 

The NOIR is like an NTA , unless they fix it , only one direction to EOIR. Little clues in NOIR, they refer to applicant as respondent and bring forth allegations . 
‘

 

 

[SnowFairy 4]

On 7/28/2024 at 4:01 PM, Family said:

As a template for your response, use their own draft and add sworn affidavit to title. …no I-290 B here. 

After you write it up and sign it, go to a Notary and ask for a Jurat ( not Acknowledgment)

 

Title it for Example : 

‘Response to Notice of Intent to Rescind Permanent Resident  and 

‘Sworn Statement by @SnowFairy

Case #xyz, A# xyz

 

In response to the NOIR dated xyz, requesting the following additional documentation :

 

1. Evidence to support the respondent is statutorily qualified for adjustment of status under sec xyz ( cut copy paste sec)

 

2. Sworn statement by respondent 

 

I am enclosing the following evidentiary documentation and factual clarification . 
I , SnowFairy , hereby declare the following to be true , under penalty of perjury:

 

1. As of the date of above referenced NOIR, I meet all statutory requirements under sec xxx, as outlined on USCIS  ( list the bullet points ) attach print out 

 

2. On July 2023, I submitted I-485 , relying on the published guidance of Feb 2023 and the estimated processing times . The Feb 2023 guidance clearly states an applicant may submit I-485 prior to accruing 1 year physical presence in asylee status. ..without additional burdens / restrictions on the applicant’s role or responsibilities as it relates to the timing of processing and adjudication. 
‘Since applicants have no control over The Service’s processing speeds, or lack of, I placed my faith in USCIS Policy Manual Guidance .

 

3. USCIS adjudicated and approved my I-485 prematurely on xyz.  This is a Service Error . In good faith , I advised The Service , a noteworthy fact meriting discretion .

 

4. I hereby admit allegations 1 through 4 . I deny allegation 5. As of xyz date , i have one year since IJ grant and meet all criteria for adjustment of status. 
‘To rectify USCIS error, I am submitting a new I-485 and recession proceedings be terminated and ask the benefit granted .

 

Signed under penalty of perjury …

 

 

 

 

https://www.justice.gov/eoir/reference-materials/ic/chapter-7/3

Thank you so, so much for this draft!🙏

 

I prepared it for submission. Would you mind taking a look to see if that's what it's supposed to look like? 

 

For example, the response and the statement are two separate documents, right? And I get Jurat only for the statement itself? Do I list and add any other evidence, such as 485 receipt or approval notice, etc? They also messed up the dates in allegations 3 and 4, just for a few days, is my way of correcting them ok? 

[Family 3,988]

5 hours ago, SnowFairy said:

Thank you so, so much for this draft!🙏

 

I prepared it for submission. Would you mind taking a look to see if that's what it's supposed to look like? 

 

For example, the response and the statement are two separate documents, right? And I get Jurat only for the statement itself? Do I list and add any other evidence, such as 485 receipt or approval notice, etc? They also messed up the dates in allegations 3 and 4, just for a few days, is my way of correcting them ok? 

Great draft, you are a quick study 😂. 
 

1. I intended one document…this way you only pay one notary fee. But you can leave as you drafted and just number pages so it will be one document anyway…and sign on last page.

oh and add you name after A# at top

 

2. If they screwed up on allegations 3 and 4, then you DENY 3, 4 and 5. DO NOT help them or spell it out for them ( remember they  have the evidence of dates and you are including them in response )😂…it’s a bonus point for you to SAY “ defective NOIR served “ and yet another USCIS error. ..but keep that in your pocket till or if you  get in front of IJ. 

3. Do a simple Exhibit page and number the items you are enclosing 

 

Edited July 31 by Family

[TBoneTX 45,250]

2 hours ago, Family said:

this way you only pay one notary fee

In Texas, notaries may not charge for immigration-related signature notarizations.  She should perhaps check to see what the notary laws are in her state.

[Family 3,988]

21 minutes ago, TBoneTX said:

In Texas, notaries may not charge for immigration-related signature notarizations.  She should perhaps check to see what the notary laws are in her state.

The notary fee is so modest , that I blush at negotiating that. I do love the “ financial savvy “ mindset , so great advice.

‘Anyway, OP just saved a few-many-many thousands just DIY this far…( especially the attorneys telling her I-290 B)…she can splurge 😂 on poor Notary who will have to dig up a rarely used Jurat

Edited July 31 by Family
Pronouns boo boo

[SnowFairy 4]

3 hours ago, Family said:

Great draft, you are a quick study 😂. 
 

1. I intended one document…this way you only pay one notary fee. But you can leave as you drafted and just number pages so it will be one document anyway…and sign on last page.

oh and add you name after A# at top

 

2. If they screwed up on allegations 3 and 4, then you DENY 3, 4 and 5. DO NOT help them or spell it out for them ( remember they  have the evidence of dates and you are including them in response )😂…it’s a bonus point for you to SAY “ defective NOIR served “ and yet another USCIS error. ..but keep that in your pocket till or if you  get in front of IJ. 

3. Do a simple Exhibit page and number the items you are enclosing 

 

What do I win by denying 3 and 4, rather than just fixing it? Or do I formally deny, but then write the correct info? They are going to see it as soon as they receive my response, not in court, no? I'm worried it might cause further delays, a second NOIR, etc.

 

Thank you again!

[Family 3,988]

12 minutes ago, SnowFairy said:

What do I win by denying 3 and 4, rather than just fixing it? Or do I formally deny, but then write the correct info? They are going to see it as soon as they receive my response, not in court, no? I'm worried it might cause further delays, a second NOIR, etc.

 

Thank you again!

The 30 clock is on.
They executed and served you. Unless they fix the error and pull back, you go to court. You never ever..like never give up advantage …and certainly don’t give them an opportunity to amend and start a whole new 30 days .

Whether you deny one or all allegations, it’s the same …and results in contested hearing. Judge will be sympathetic to you when you point to yet another error. 
 

A defective NTA , for example is a win…but  you are not fighting removal …If they take status , you are still an approved asylum holder who can simply file new adjustment….

 

Please don’t let Time , stress you. ..as you are in this to win. You were very blessed to enter and apply for asylum when you did. There are a bizzilion people stuck waiting for 5-8 years 

 

https://www.cliniclegal.org/resources/removal-proceedings/bia-holds-dhs-cannot-file-form-i-261-remedy-defective-ntas